Accounts

The recently tragic case of Erwiana Sulistyaningsih in Hong Kong has again highlighted the plight of foreign domestic helpers (FDH) in the city. 23 year old Sulistyaningsih is an Indonesian FDH who has alleged that she has been subject to serious acts of cruelty amounting to torture by her employer over an eight month period. Recent photos of Ms. Sulistyaningsih shows her underweight with broken teeth, bruised and with feet black in color with open sores. Quite telling of the Hong Kong attitude to FDH is that this woman, very obviously seriously abused and beaten, was able to go through customs at Hong Kong airport and return home without being asked any questions as to her physical state. Since this story has come to light two more FDH have come forward with of similar abuse at the hands of the very same employer and there are already reports that employment agency staff took her back to the employer after she previously tried to escape, saying that she cannot leave yet without completing her payment to the agency. To anyone working with migrant workers in Hong Kong this will come as no surprise as they are often the forgotten population of this hyper wealthy state. Indonesian Kartika Puspitasari made headlines last year when her two-year-long torture in the hands of a HK couple was made public and a 2012 Mission for Migrant Workers survey found that 18% of migrant domestic workers in the city had been physically abused.

There are more than 300,000 migrant domestic workers in Hong Kong, with about half from Indonesia, many others from the Philippians and nearly all are women. A recent Amnesty International report “Exploited for Profit, Failed by Governments” emphasized the abuse that many FDH are subjected to in the affluent city. Lured with the promise of well-paid jobs the reality could not be more different for many of the women who arrive here. The Amnesty report found that systemic failures by both the Hong Kong and Indonesian governments to protect FDH from exploitation. The findings of the report are based on in-depth interviews with 97 Indonesian migrant domestic workers and supported by a survey of nearly 1,000 women by the Indonesian Migrant Workers Union.

The first discriminatory aspect of Hong Kong’s law is that there is a mandatory live-in rule for FDH. Given the space restrictions in housing in Hong Kong a survey by the Mission for Migrant Workers found that 30% of helpers are told to sleep in kitchens, bathrooms, hallways and closets. Under Hong Kong Law, employment agencies are permitted to charge up to 10% of the FDH’s minimum monthly pay and there are numerous government websites with FAQs on these issues. In addition in their home countries, there are also laws regulating recruitment and training fees. The Amnesty report again found that in Indonesia, FDH’s are compelled to go through government-licensed recruitment agencies including for pre-departure training. These agencies, and the brokers that act for them, routinely deceive women about salaries and fees, confiscate identity documents and other property as collateral, and charge fees in excess of those permitted by law. Full fees are imposed from the outset of training, trapping the women with crippling debt should they withdraw. Their Filipina counterparts do not have to find employment through an agency and are as such not as subject to the unscrupulous middlemen who levy exorbitant charges and insist that FDH stay with abusive employers until they have worked off their debts.
Some of the Hong Kong’s most recent actions put women at even greater risk of abuse. Underpayment is a widespread problem. Yet, in the two-year period up to May 2012, just 342 cases of underpayment were lodged out of a total population of more than 300,000 FDH. Hong Kong’s laws stipulate that migrant domestic workers must find new employment and get an approved work visa within 14 days of the termination of their contract, or they must leave Hong Kong. This pressures workers to stay in an abusive situation because they know that if they leave their job, they are unlikely to find new employment in two weeks and therefore must leave the country. For many this would make it impossible to repay the recruitment fees or support their families. Given that an application for a work visa takes approximately six weeks any FDH who leaves their job will be effectively forced to leave Hong Kong. Jason Y Ng of the SCMP states that this particular rule is designed to achieve two objectives:

First, the government wishes to deter employer-shopping and job-hopping. Even though it is perfectly normal for everyone else in Hong Kong to look for a better job and jump ship every now and then, it is not so for a migrant worker. Maids who quit and work for another home are looked upon as greedy and irresponsible. The second objective is as unspoken as it is ignoble: to put arbitrary restrictions on the domestic helper’s stay to distinguish them from other expatriates.

Vallejos “Right of Abode” Case

The seconddistinction as applied has had particularly harsh consequences for domestic helpers. A recent case before the Hong Kong Court of Final Appeal (CFA) dismissed the appeal of the appellants, Vallejos Evangeline Banao and Domingo Daniel, who were seeking permanent residency status pursuant to Article 24(2)(4) of the Basic Law. The appeal came before the CFA on 26 February 2013. Ms Vallejos had lived and worked in Hong Kong since 1986 and Mr Domingo since the early eighties. In 2008, Vallejos applied for a permanent identity card but her application was rejected by the Commissioner of Registration upon which this case was taken. The CFA case was an appeal from a Court of First instance decision which had held that FDHs could be considered to be in ordinarily residence in Hong Kong and were thus eligible to acquire the right to permanent residence under Art 24(2)(4)2 of the Basic Law. Article 24(2)(4) of the Basic Law provides that persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than 7 years and have taken Hong Kong as their place of permanent residence shall be permanent residents of Hong Kong. If I was to have stayed working in Hong Kong for 7 years I could have applied to be a permanent resident in the normal manner.

However, section 2(4)(vi) of the Immigration Ordinance states that a person employed as a FDH who is from outside Hong Kong is not to be treated as “ordinarily resident” in Hong Kong and so cannot become a Hong Kong permanent resident. The CFA held that the immigration status of persons must be taken into account in deciding whether they satisfy the 7-year ordinary residence requirement. In particular they noted that:

The nature of FDHs’ residence in Hong Kong is highly restrictive. Permission for a FDH to enter Hong Kong is tied to employment solely as a domestic helper with a specific employer with whom the FDH must reside under a specified contract. The FDH is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong. The quality of their residence is therefore far-removed from what would traditionally be recognised as “ordinary residence” and the Court thus held that FDHs do not, as a class, come within the meaning of “ordinarily residence” as used in the Article. As the meaning of the Article interpreted purposively and in context was clear, there was no basis for referring to any extrinsic materials in aid of its interpretation

Michael Fordham, representing Vallejos and Domingo, focused on the constitutionality or lack thereof in the use of a blanket exclusion to prevent all people belonging to certain classes of residents from falling within the definition of ordinarily resident and thus eventually becoming entitled to apply for right of abode. Lord Pannick, for the state, stated that foreign domestic helpers “don’t form part of the permanent population” and thus it was legitimate for lawmakers to create a legislative definition of “ordinarily resident” which excluded them. The CFA issued its judgment that the restrictions on FDH residence and employment in Hong Kong meant that they did not fall within the definition of ordinarily resident for immigration purpose and a person like Ms Vallejos, diligently working and contributing to Hong Kong for over 27 years could be subjected to removal 14 days after her employment contract was terminated.

In the aftermath its is also interesting to see the barrage of racist and xenophobic comments by Hong Kong legislators in respect of the case. In particular those made by Starry Lee, Regina Ip, Chan Kam-lam and Paul Tse who directly attacked one of the barristers representing Vallejos and Domingo. These are the very same legislators who seek to deny any form of rights to those seeking asylum in Hong Kong and contribute to a culture of distrust and suspicion of the most vulnerable in society.

Migrant workers send home billions every year to their home countries in remittances, bolstering the economies of some of the world’s most poverty stricken jurisdictions. They also significantly contribute to their adopted countries. Yet they are being failed by their own governments and by the governments of the countries they work in. I have been proud to see the growth over the past number of years of organizations run by migrant workers fighting for their rights and those of their compatriots and I hope that we will see “Justice for Erwiana” and for the other migrant workers who are abused to suit the needs of the wealthy.

What Hong Kong as a society is currently saying with it’s lack of protection is that those working as domestic helpers do not matter as human beings as much as those working in international banking, business and law firms do. If not directly complicit in the exploitation, abuse and discrimination these women face on a daily basis, they are certainly enjoying the benefits of this modern day form of slavery. As Abraham Lincoln once said “Those who deny freedom to others deserve it not for themselves.”